Thoughts on copyright, intellectual property, images and Section 114A

Here’s a question of moral fiber for you: if you were moderately hungry, for a let’s say a piece of fruit; you happened to walk past an apple on a table. Would you take it, if:a) A sign said ‘please help yourself’
b) There was no sign, and no obvious owner
c) There was a tag on the apple saying ‘this belongs to’
d) The table with the apple on it was in a grocery store.

Most people would take it in situation a); some might take it in situation b); and almost nobody in c) and d) because it would be outright theft. Simple, right?

Let’s look at this situation again. Suppose you needed an image of an object. You find one on the internet that suits your purposes. Would you download and use it, without asking, if:a) The image was under a creative commons license
b) The image was a sample for royalty-free or licensed stock
c) The image was on somebody else’s gallery site, say Flickr
d) The image was on somebody else’s site with a watermark and ‘all rights reserved’ in the fine print.

Not such a straightforward answer now, is it? For one, people tend to behave with much less regard and decency in the anonymity of the internet than in the real world. Images are intellectual property. This has monetary value, especially if you are a photographer; taking them without permission if you are not allowed to do so is plainly theft. The answer to the above dilemma is that only in situation a) would you be able to use the image without obtaining the image owner’s permission. b), c) and d) are all theft. However, most of the time asking nicely and offering credit is usually enough for the image owner to agree. After all, everybody knows that anything and everything put on the internet is fair game for viewing and public consumption.

Returning to the fruit analogy, the problem comes when there’s nobody doing any policing; how many of you would still follow the law to the letter if you were almost certain you’d never get caught? The reality is that it’s impossible for a photographer to police their own IP on the internet; there’s simply no way to prove that an image hasn’t been used other than by seeing every single image on the web and coming to the conclusion that none of those images are yours.

It gets even more complicated: although use of an image for any sort of use other than the license granted – and creative commons is the only license that lets you use an image without attribution (usually) for non-commercial purposes – is theoretically theft, there’s no point in following legal recourse if there’s no value to be gained. In such situations, the only people who win are the lawyers. Thus we are left with a perceptive difference – even amongst photographers – that ripping an image that’s not yours for editorial or blogging purposes isn’t as ‘bad’ as commercial use.

True, but theft is theft – would it matter if somebody stole the apple to eat themselves or to sell on to somebody else? No.

It doesn’t help that the majority of photographers are completely unaware of their own rights, and don’t bother issuing licenses or clear terms of engagement and usage conditions to clients or recipients of images; the problem here is that there’s now no way of proving whether the user of the image is a rightful licensee or not – such claims will be extremely weak in a court of law, because of the precedent that the photographer himself/ herself does not value their own images or intellectual property.

There’s an obvious cascade here: If the photographer isn’t aware of their rights, and doesn’t stand up for them, how can they communicate that to clients or persons infringing? The answer is, they can’t. And you can be sure that nobody else is going to, because it simply isn’t in their best interests to do so. This results in a wide base of consumers of media who simply expect it to be free, and pout and lose their temper when they’re told it isn’t.

I’ve recently had several cases of unauthorized image use – some on blogs, some editorial, and some commercial – not one single person bothered to have the simple courtesy to ask if they could use the images in question. I would have given permission for editorial use with attribution; for commercial use with licensing (if you’re using it to make money, it’s only fair that I should receive a license fee for helping you to do so). The most ignoble part of it was that in all cases, images were stripped from the server or screen capped, most of the time with the watermarks cropped out, and in some cases, manipulated to form horrible collages or crops – with the watermarks in. There’s another obvious problem with this: not only does it clearly demonstrate that all of the offenders knew what they were doing, but they also didn’t care. Do you think they would feel happy if somebody did the same to their content? Would they sit back and do nothing? I don’t think so, somehow. I put a lot of time and effort into creating content for this site – images, text, graphics etc – and it angers me when I see somebody else profiting off it without even the courtesy to ask permission. Only one apologized when confronted. The rest didn’t even respond, and will be the recipients of legal documents in short order.

It gets worse: what if one of the images used without permission is used in a defamatory or negative way? Or even displayed badly, but with the photographer’s watermark in place? The reputation of the photographer is on the line here – both professionally (what if influential people/ potential clients see the poor crops or presentations and make conclusions unfairly, leading to loss of business?) and legally – if used for defamatory purposes, the photographer can be liable – the onus of proof is on them to demonstrate that that was not the intention, and use was without permission. As with all demonstrations of negative proof, it’s extremely difficult to do and highly time consuming. You as a photographer have a responsibility to your own work and image to ensure that they are not used in a negative manner.

This problem isn’t just limited to images – music, articles, writing, artwork – anything creative that can be easily replicated and distributed – is also fair game. The more effort required to produce something, the more likely the creator is to defend their rights – you can bet your bottom dollar that there will be almost no court cases involving camera phone images, but no end of those for piracy of big-budget movies. Simple rule: the more effort you have to put into creating something, the more value it should have – else economics simply don’t make sense.

Speaking of economics, there’s a concerning trend here, too: free markets are dictated by willing buyer/ willing seller; prices fluctuate proportional to demand. If there are no or few willing payers for photography in today’s marketplace, what does that mean for the industry as a whole? Aside from the big budget productions that still require commissions, you can be sure that will translate not only into falling photographer rates, but also increasing image theft or copyright infringement. It’s happening already, and looking rather grim.

So as a photographer, what can you do to prevent this? What can you do to safeguard your rights and preserve the value of your images? Several very simple things:
1. Do not use anybody else’s images without permission, except if the images are available under a creative commons license, and even then, only for non-commercial use. If you have used images in the past or are still using them, either remove them or seek permission from the owner of the image. Don’t forget to give credits.
2. Issue licenses to all users of your own images, that clearly state the parameters of use (consideration, applicable images/ file names, date and region of validity, permitted media) and some form of signed agreement.
3. If you see images being used which clearly do not belong to the photographer, please make the photographer aware if you can – often this is the only way we will find out (and thank you to those readers who’ve drawn such situations to my attention in the past)
4. Support photographers who are exercising their rights. If there is enough social pressure not to do something, it will reduce in prevalence and hopefully eventually cease.

I want to finish this article by talking about a new act that’s coming into force affecting all Malaysians: Section 114A of the Evidence Act 1950, amendment passed April 2012. It’s the complete opposite of intellectual property rights: the implication is that we are now legally liable for every single distributed piece of information via whatever networked means we are deemed to control or have administration rights over, whether we posted it or not. If somebody hacks your site and posts a defamatory, libelious comment or something similar, you are responsible. If somebody leaks confidential information, you are responsible. If somebody uses your site, your devices, or even your internet connection, you are responsible – regardless of whether you did it or not, or whether you were a willing participant or not. Yes, that means if your laptop was stolen at gunpoint, then used to rob a bank, you are legally liable to be prosecuted for the bank robbery. The onus of negative proof is now on you, the site owner – and every good scientist will tell you, that’s impossible to do. Notably, the act does not cover copyright infringement – so that means you have no additional legal recourse if somebody decided to steal one of your images.

If this seems a bit stupid, it is. At the moment it is unclear how the act will be enforced, but you can be sure that if it’s anything like ISA, it probably won’t be fairly applied. The troubling thing is just how much power this gives to criminals and would-be hackers – if you’re webmaster of a popular site, it’s probably time to change your passwords and increase the security around your servers. Sad to say this, but between poor recognition of legitimate intellectual property rights and enforcement of liability against something you didn’t do, Malaysia has taken one enormous step backwards for creativity and e-commerce. I’m not shutting down this site yet, but I’m also not ruling it out if enforcement of the law becomes unreasonable. For more information or to support the opposition to 114A, visit www.Stop114A.wordpress.com

Apologies for the very serious, heavy article, but I feel that I must use my little soapbox as well as I can to raise awareness and defend the fort for all fellow photographers. Let’s keep this business viable for all of us. MT

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Comments

I do notice that some well known photographers just put a copyright claims at the page footer, but they don’t even bother to watermark their photos. Don’t they even bother if someone use it without permission? I found that watermarking a photo sometimes distract and even decrease the photo value, but yet, I’m concerned about those image thieves. People are generally doesn’t care if the photo belongs to someone, they will take & use it with or without any thoughts. I’m no fans of watermarking, but if I must, I will do so. Let say, it is suffice just to have a claim of copyright at the page footer & without any typo copyright nor watermark on each images on website/facebook/blog? What ever it is, they still & would steal the images, right? Any thoughts?

The only solution I’ve found to both issues is a) embed your copyright in the EXIF information; b) use a border; c) never upload anything large enough to print or sell. I’m not a fan of watermarking the image itself either, but it seems the unscrupulous people on the internet (of which there are loads) leave us without much choice. Legally, the footer does suffice, but how are you going to enforce it?

Thank you for the advise. Seems that I need to re upload most of my photos. Any thoughts on the no-right click? I’m using the code at the moment, not really sure if it helps. Haven’t see anybody use it except for digitalrev.com .

Anonymous, via email from a former IP specialist (but worthwhile sharing, with permission):

Firstly, on IP – in reality, something is only “wrong” if it is perceived by the majority of people to be wrong. IP infringement is seen as a victimless crime by most, a bit like driving through a red light on a quiet street, and so the community doesn’t really care about it. Unfortunately, as you know, creatives are suffering because of this attitude.

Worse, the current economic crisis is pushing IP enforcement onto the back burner. Governments have decided that there are other priorities.

Which pushes the enforcement burden onto individual creatives. And the cost of enforcement is ridiculously high in Malaysia, Australia and virtually every country in the world.

So what’s the solution? Use a mixture of legal and other methods (some of which you seem to already be doing) to pressure infringers into doing the right thing. Eventually content owners will learn to work with new technology instead of fighting change, and we’ll all work out community standards on respecting IP. What is not so positive is that many photographers put “the legal stuff” into the too-hard basket and don’t think about it. I think it’s great that you’re encouraging them to take licensing terms seriously.

As for s. 114A, there’s not much I can say that hasn’t already been discussed by others. I’m not used to seeing a government which is so blatant and desperate. Hopefully the people will vote properly when they have the chance.

The world is a big place and there are lots of jurisdictions and web hosting companies competing for your business. If one country adopts bad laws that make it unsafe for you to do business from that jurisdiction, you can easily leave, and should do so if you want to send a message.

Pick another country with better, more business friendly laws and host your website there. You can sign up for web hosting in another country so easily in just minutes. You might even go one step further and create a Corporation or LLC (that you will directly or indirectly own) in the more business friendly country (or in yet another business friendly country) which will own your website, if that contributes to your safety. For example, compare Section 114A with the United States’ 47 U.S.C. §230(c)(1).

If your country finds that it is losing all its websites which are fleeing to safer places to do business, perhaps it will have to rethink its bad laws. I think it is important for people who value freedom to punish governments by leaving, when that is feasible, and especially online where it is so inexpensive and easy to flee.

Thanks for the suggestion. The backup plan is there, but because the majority of my business doesn’t have anything to do with the web, but relies on local clients and relationships, I’m stuck here for the moment – or have to face starting again completely. Rock and a hard place…

The other thing is that I’m pretty sure our government doesn’t care if the sites leave; they don’t seem to value them anyway. Bloggers here are seen as a nuisance and threat to information control rather than a creative resource.

The problem is that the powers that be are insufficiently educated to tell the difference between something of genuine educational/ artistic merit and something which is pushing an opposing political agenda…

Blogging is a powerful voice, people like you who are photographers and make a living out of it must stand and fight for what is unfair. It is your livelihood! People like you, Robin Wong, the Zack Arias, to the Joe McNallys of this world, only as a matter of time must come together to stand for something bigger. Street-photography in the UK has reached serious negative implications often deemed acts of terrorism, Middle-Eastern country forbidding the use of DSLR in their country to name a few of the popular news you ALL may have already heard about is just plain ridiculous for those who do it for leisure and for a creative living.

The exploitation of genuine photography for creative purposes should be explored and taken differently and NOT blurred and mixed with crimes that take place. Educating readers of blogs, is a great step, but surely it is something that should resonate to EVERY photographer and artist out there. If you care for holiday snapshots to those who cherish intimate family memories, to those who aspire to stretch their hobbies to new creative heights, should all understand this, but somehow there are certain mindsets than allow themselves to be SO brainwashed, it is very perverse way of thinking that is damaging to society in general. Hearing about this in Malaysia, definitely ROCKS my BOAT in a big way!

Powerful enough to put some of our more bloggers in the firing line of the investigators…

Once again, it boils down to education, or the lack of it – a terrorist isn’t going to spend money on a pro camera, he’s going to use his phone so he can send intel along straight away. Cameraphones and their transmission capabilities are far more of a threat than big bulky cameras.

I suppose until the powers that be get educated and see sense, we have no choice but to avail ourselves of the smaller (and thankfully ever improving) offerings of the cameramakers…

Not good! An ill-thought through piece of legislation (no change there then?) with the usual un-intended consequences. I wish you and all protestors good luck in the campaign, but getting those in power to admit a mistake……?

Totally in agreement with you on image theft. My photos are watermarked. I have my copyright blurb at the end of each post. I also have a copyright sentence at the top of my sidebar. Do people notice these?
I’ve had my entire post “reblogged” without permission. I don’t agree with WPs reblog button. Just my opinion, but I feel I should be asked when my images leave my blog. Thanks for your post.

[…] Here’s a question of moral fiber for you: if you were moderately hungry, for a let’s say a piece of fruit; you happened to walk past an apple on a table. Would you take it, if:a) A sign said ‘please help yourself’b) There was no sign, and no obvious ownerc) There was a tag on the apple saying ‘this belongs to’d) The table with the apple on it was in a grocery store.Most people would take it in situation a); some might take it in situation b); and almost nobody in c) and d) because it would be outright theft. Simple, right? […]

[…] Here’s a question of moral fiber for you: if you were moderately hungry, for a let’s say a piece of fruit; you happened to walk past an apple on a table. Would you take it, if:a) A sign said ‘please help yourself’b) There was no sign, and no obvious ownerc) There was a tag on the apple saying ‘this belongs to’d) The table with the apple on it was in a grocery store.Most people would take it in situation a); some might take it in situation b); and almost nobody in c) and d) because it would be outright theft. Simple, right? […]